9911796707
TMI Blog2019 (3) TMI 195X X X X Extracts X X X X X X X X Extracts X X X X ..... its Reply Statement and has proved that the amounts claimed by the Operational Creditor, on the basis of the Invoices the detail of which is placed at page 16 of the typed set filed with the Application, have been paid through RTGs except Invoice No. 456, the amount of which was paid in cash. The Corporate Debtor has also placed the original documents pertaining to the payments made against the Invoices, the detail of which is given under Para 13 at Table 'A' of the Reply Statement. Cash Payment Advices with regard to which this Authority has suggested the Operational Creditor that the original documents need to be sent to the Handwriting Expert as the signatures of the authorized signatory of the Operational Creditor are being disputed by the Operational Creditor. But, the same has been refused and the Handwriting Expert's opinion placed on record is not inspiring the confidence of this Authority, as the opinion has been formed on the basis of the scanned copies, photo state etc. Therefore, the 2nd issue is also decided against the Operational Creditor and in favour of the Corporate Debtor. Application filed under Section 9 of the I&B Code, 2016 by the Operational Creditor is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... received by Corporate Debtor at their factory and duly acknowledged by way of seal and signature on the Sale-Excise Invoice cum Delivery Challan for having received the material at their premises. The cycle for transaction as Sale in Transit was therefore complete. Pursuant to the completion of such Sale in Transit, the Operational Creditor raised Invoices against the Corporate Debtor and the same stood payable. 5. The Corporate Debtor is stated to have executed five Hundies in relation to the transactions, out of which two Hundies have been honoured and the remaining three Hundies are still payable as on date, amounting to ₹ 33,55,543/-. It has also been stated in the Application that the Corporate Debtor vide Communications dated 04.03.2014, 26.04.2014 and 18.11.2015 have acknowledged the debt and promised to pay the sum due. It has been stated that the Operational Creditor has apart from e-mail reminders, sent legal notices dated 18.07.2016, 17.07.2017 and finally notice under I B Code, 2016 dated 26.12.2017. 6. The Corporate Debtor has filed the Reply Statement wherein it has been submitted that the contents of the Application and Rejoinder filed by the Operational ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... roceedings or appeals before Adjudicating Authority. The Corporate Debtor has relied upon the Order passed by Hon'ble Supreme Court in B.K. Educational Services (P.) Ltd. v. Parag Gupta Associates. 10. Besides above, the Counsel for the Corporate Debtor has submitted that whatever were the Invoices raised, payments have been made in Cash through RTGS and nothing remains as outstanding against the Corporate Debtor. It has further been stated that consignment containing Invoice Nos. 459, 460 and 463 have not been received which involves the amount of ₹ 12,07,790/-, the same has been confirmed by the Operational Creditor vide communication dated 20.06.2014, which has been placed at page 10 of the original documents filed with the Affidavit duly sworn in by the Director viz., Mr. Shionala Sadhu. 11. If the Computation Table placed at page 16 of the typed set filed with the Application is taken into consideration, the Invoices are 14 in number i.e. 445, 452, 253, 454, 455, 456, 457, 458, 459, 460, 463, 464, 465 and 466, the payments seem to have been made by the Corporate Debtor through RTGs except for Invoice No. 456 (paid in cash) as reflects from the Reply Statement ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r making final submissions. 14. It is worthwhile to note that the Cash Payment Advices are stated to have been signed by the Operational Creditor confirming the payment of the Invoices and the signatures are disputed by the Operational Creditor but the Operational Creditor has refused to send the original documents to the Handwriting Expert to compare the same with the admitted signatures of the Operational Creditor. Therefore, a strong presumption has been drawn against the Operational Creditor. 15. In the light of the pleadings of the parties, two issues are required to be framed which are as follows: i) Whether the Application filed by the Operational Creditor under Section 9 of the I B Code, 2016, is time barred? ii) Whether the Corporate Debtor has proved the payments pertaining to the Invoices, as has been claimed by the Operational Creditor? 16. In relation to the 1st issue, it has already been noted hereinabove that the Invoices are of the year 2013 as reflects from the Computation Table placed at page 16 of the typed set filed with the Application and the last Invoice is of 30.09.2013. The Operational Creditor claims that the confirmations have given by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the typed set filed with the Application, have been paid through RTGs except Invoice No. 456, the amount of which was paid in cash. The Corporate Debtor has also placed the original documents pertaining to the payments made against the Invoices, the detail of which is given under Para 13 at Table 'A' of the Reply Statement. Therefore, Cash Payment Advices with regard to which this Authority has suggested the Operational Creditor that the original documents need to be sent to the Handwriting Expert as the signatures of the authorized signatory of the Operational Creditor are being disputed by the Operational Creditor. But, the same has been refused and the Handwriting Expert's opinion placed on record is not inspiring the confidence of this Authority, as the opinion has been formed on the basis of the scanned copies, photo state etc. Therefore, the 2nd issue is also decided against the Operational Creditor and in favour of the Corporate Debtor. 18. In the light of the facts and circumstances and the legal position stated above, the Application filed under Section 9 of the I B Code, 2016 by the Operational Creditor is devoid of merits and the same stands dismissed. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
